Affirmative Action Hit on Sotomayor Aimed to Send Message

Rush Limbaugh, Pat Buchanan and the conservative judicial hit team wasted no time in branding Judge Sonia Sotomayor a combination activist judge and closet bigot who will lord her gender and ethnicity over white males, and savage them in her decisions and rulings on the Supreme Court. They wave Sotomoyar's narrow and legally sound appellate court vote against a group of white New Haven firefighters who screamed reverse discrimination when the city dumped a promotion test that black and Latino firefighters got lower marks on than the whites. Supposedly this will stir anti-affirmative rage among the public against her.

If as expected, the Supreme Court rules in June that the firefighters were discriminated against, that will prove that Sotomayor is badly out of tune with the majority of Americans who oppose affirmative action.

The anti-affirmative action baiting won't derail Sotomayor's confirmation, but then again it's not really designed to do that. The aim is to send a message actually two messages; one to Sotomayor to make her think twice about her rulings and decisions and opinions on race and gender tinged issues that will invariably will hit the court. The other message is to drive home that American's are still repelled by any talk of using affirmative action to level the playing field. Nice try. But there was no judicial activism in her New Haven case ruling. Her opinion was based strictly on case law and legal precedent and in her opinion she did not utter a word that gave any hint of a race tilt. On the high court, she'll be intently scrutinized for the same hint of a racial bias. But since the justice's cite a long train of case law and legal precedent in their decisions, and craft them in the narrowest of terms, she won't give the conservative judicial hawks anywhere to go there either.

The smear of her as out of touch with American opposition to affirmative action is more delusional thinking. True, a majority of Americans do firmly oppose the use of quotas, preferences, set asides and even what's deceptively labeled "reverse discrimination." They've backed anti-affirmative action initiatives that tar affirmative action programs as a gross violation of the America's cherished values of equality, fair play, and reward for merit. But polls have also shown that when the pollsters avoid an all-or-none choice between affirmative action as it currently exists and no affirmative action whatsoever a majority of Americans support affirmative action at some level.

Title VII of the civil rights law explicitly gives employers the right to ban tests that have a "disparate impact" on racial groups. The New Haven firefighters test squarely fell in that category, and Sotomoyar's opinion in the case simply acknowledged that legal fact.

The staple of the anti-affirmative action argument is that qualified white males are getting kicked to the curb and are losing ground to unqualified blacks, minorities and women. This underlay Limbaugh's snatch at Sotomayor's off the cuff quip uttered nearly a decade ago in a Berkeley speech about a "wise Latina" having a better grasp on life's knocks than white males to prove that she's a bigot. The facts, though, speak for themselves on this one. According to census figures, if every unemployed black worker in the country were to displace a white worker, only a tiny fraction of whites would be affected. Furthermore, affirmative action pertains only to job-qualified applicants, so the actual percentage of affected whites is minuscule. In New Haven, only a relatively small number of firefighters were affected by the alleged reverse discrimination.

In 1996 anti-affirmative action crusader Ward Connerly cloaked his anti-affirmative action ballot initiative as the "California Civil Rights Initiative." Connerly also managed to win a few victories for his anti-affirmative action measures in some states. However, less well known is that Connerly also scotched plans to dump his anti-affirmative action initiatives on dozens of state ballots nationally. The resources, political sentiment, and public support to mount a big freewheeling all out national assault on affirmative action were just not there.

Congress has also repeatedly backed away from totally dismantling affirmative action programs, beginning a decade ago when lawmakers shelved anti-affirmative action legislation. President Bill Clinton followed suit. He drew much heat for his plan to modify some aspects of affirmative action programs, but eventually dropped his administration's talk about further watering down affirmative action programs.

The anti-affirmative action crusade hasn't fared any better in state legislatures. No state legislature even in the Deep South has pushed for an outright ban on all affirmative action programs.

The anti-affirmative action hit against Sotomoyar is more than a last gasp, desperate grab at straws by the conservative hawks to derail her confirmation and pick at Obama. The goal is to chill her on the court and batter affirmative action. Neither will work.

Earl Ofari Hutchinson is an author and political analyst. His weekly radio show, "The Hutchinson Report" can be heard on weekly in Los Angeles at 9:30 AM Fridays on KTYM Radio 1460 AM and live streamed nationally on ktym.com

Comments

[mostlyharmless]

it is fascinating to watch old white men, who have lived a lifetime of preferential treatment, come unglued over the possibility that being something other than white and male is an advantage

as a woman who grew up poor in the sixties and seventies, i had to learn to negotiate the dominant male world as well as the world of women, and the world of the underclass, as well as the world of the dominant, comfortable classes . . . this need to be multiculturally fluent often seemed to be a burden, until i found myself attending ivy league schools among those who were not so fluent . . . most dramatic were my years at yale law school, where my ability to see a problem from so many different angles proved to be a real advantage . . . and i realized that being "worldly" can mean so much more than just traveling to europe and eating in exotic restaurants

sonia sotomayor has experienced most of the places and pursuits of her successful, male peers, but she has also experienced so much more . . . is it inconceivable that she can offer the court a rich, new perspective?

[rain33]

excellent journalist at its best! earl ofari hutchinson made it very clear about how right wing nuts who don't want a hispanic, black, asian,indian nor any minority serving the highest court in the land..look at cnn on the bottom of the screen-they are displaying her court cases of opinions for judging against blacks or other civil court cases in new york..i need to see more info about of her cases because i want the facts base on statuory law as well merit for her rulings.let's be real-she isn't the only minority to be discriminating against blacks and whites, other judges (white,black,etc) are doing the same things as she is too..right wing men only want white men serving courts no one else because they are racists too.

[nkadzi]

excellent analysis!

[jcwtts1]

Do you know when I was applying to Ivy League Schools they were looking for people from all fifty states. If you were one of the 20 people who apply to Penn from Alaska you went into a different pool that the 10,000 apply from Pennsylvania. That is Affirmative Action. If your parents went to Harvard you go to a different pile than the general pool when applying to Harvard. That is affirmative action. If you have won an Olympic medal or participated in the Olympics that is a different pool. Does anyone think that George Bush got into Yale and Harvard because he was that smart, or did he get in because he is a fourth generation Yaley? Seriously? Do you know if your parents are huge donors you go into a different pile? Do you know that if a member of the board of trustees speaks for you, you go into a different pile, do you know that if your are the kid of a professor you go into a different pile... is it starting to make sense? All Race Based Affirmative Action does is say racial diversity can... not has to, but can be considered as well as all the things I just named. It helps a handful of kids who wouldn't otherwise get a chance, and the benefit is enormous to the student and the school.

J

[jcwtts1]

The whole argument about Affirmative Action exists around the term qualified. If you took the vast majority of students from tier one schools, and sent them to the Ivy League, they would do fine. Some would excel, some would drift through, some would struggle, just like now. To be qualified requires a basic minimum on the SAT and a basic GPA, but that does not mean if you hit the numbers your are promised a stop, there are a thousand other factors that are involved in getting in. The same is true for jobs. Better qualified is a misnomer, it is a fallacy. If you get a 92 on a test and I get a 91, you aren't more qualified than I am... unless our job is taking tests all day. You have to look at the interpretation of the data, of the quantification of the whole package. And one thing people have to understand about Affirmative Action... it exists in about a hundred different forms.

J

[apache58]

Mr. Hutchinson, in the article you stated, "according to census figures, if every unemployed black worker in the country were to displace a white worker, only a tiny fraction of whites would be affected." Your conclusion to this is seems to be that you believe this to be an appropriate. Apparently for you, if it is just a "tiny fraction of whites" we should ignore that is prejudiced and unfair. I cannot believe that you believe this is just. That the hard work and pursuit of happiness for only a small fraction can be trivialized because it is only a small fraction.

If we reversed the situation and said, "only a small number of minorities who were more highly qualified lost there jobs to the less qualified white workers...,” there would be outrage. I would have to listen to Al Sharpton and Jesse Jackson on T.V. for the next month as they marched in the streets. Equality and justice should be blind. I am not a lawyer and I do not know legal precedents, but I do believe that we all have some sort of innate sense of fairness and justice. And until we can apply that to all groups of people of every race, creed, class, religion, etc. the longer hatred and injustice will exist in America.

[jcwtts1]

I can't believe I am about to enter the AF Action wars again It has been 20 years for me but here goes. You statement that "only a small number of minorities who were more highly qualified lost their jobs to the less qualified white workers...." that isn't a hypothetical that is a statement of fact. It has happened for the last fifty years in this country and will continue. To rehash a fight I had when I was 21 and finishing college, "Where are all the black professors?" I graduated after having three majors, with a broad range of interests and electives and went to a school in the middle of North Philadelphia and graduated having only one black professor in my tenure. I finished grad school at the same school with one black professor. So in 7 years at Temple University in the 90s I had one black professor. Where was the affirmative action that was such a bogyman. So having completed another degree years later I assumed it would all be different. That a decade later there was no possible way that it would be identical to the way it had been in the 90s. That affirmative action would have hired some blacks into positions of higher education in a north east corridor research 1 institution... Made it through with one black professor again. One. Give me a break. The single largest beneficiary of affirmative action are white women.

[apache58]

It is wrong for any higher qualified candidate any anytime to be passed over for race. You speak of fifty years ago and I realize at that time things were different and affirmitve action (like hate crime legistlation) was necessary. But now with a woman as Secretary of State, a mixed race half black president, a latina SCJ (alomst,) etc. how do we judge when and where affirmitve action is appropriate? Should it be based on a percentage of population of ethnicity and gender? Should socioeconomic class and median income of ones family as a child be included? It gets very confusing.

In many cases I am sure prejudice and some degree of racial injustice still exist but in the case discussed above it sure as hell doesn't seem right. Hiring an outside consultant to design the test to not be prejudiced and then throwing out the results because of how different racial groups preformed is ludicrous any way you cut it. I think also the unspoken thought that had the results been different (along racial lines) the test would have counted is what is expecially frusterating for the parties involved.

[AGarcia]

Thanks for your post. To me, this is the most shocking aspect to the ongoing criticism. The cries of "reverse racism" would not be much more than ridiculous prattle, if they might not have some effect on the case currently before the Supreme Court. The Civil Rights Act of 1964 is one of the most significant changes to occur in the history of this great country. Sadly, many of the conservative judges currently serving on the Supreme Court (Roberts, Scalia, etc) seem to be looking for opportunities to undermine that legislation. Hopefully with this appointment, people will have increased awareness of the activities of the Supreme Court in this direction.

[tallisse]

PLEASE READ. What Sotomayor was talking about in her Berkeley speech is the importance of diversity in our judges. This speech is a call for all types of judges, white males included but also others, because, in her words, personal experiences affect the facts that judges choose to see.

She said, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived her life, WITHIN THE CONTEXT OF DECIDING SEX OR RACIAL DISCRIMINATION CASES. Just like in deciding an antitrust case, a judge who only had the experience of being a big corporate CEO might look at the case differently than a judge who only had the experience of being a small business owner.

Now you can agree or disagree with her sentiment that having judges with varying personal experiences makes the judicial system better. But calling her a racist because of it is completely and utterly INACCURATE. Once again I fear the conservative bigots will win on spinning this one.

[arthuride]

Rush Limbaugh, like Pat Buchanan and Jerry Falwell and his ilk, is outdated news. He neither thinks logically nor democratically. Instead, like his fellow hatemongers, Limbaugh prefers a government of a few, by a few, for the few--complete with mind control and other forms of torture. Sotomayor does have her ethnicity as does each of the other judges, and it does and will play a role in her opinion--as did Sandra Day O'Connor's religion when she declared that the USA was a Christian name (by foundation, yes, but today? not quite as Christians no longer make up a definite majority, nor do all Christians recognize the same iconography, hagiography, or psychology)--ignoring Jews, Mormons, Moslems, Sikhs, Hindus, and a plethora of other confessions. Sotomayor is well trained, and takes her opinions based on the letter of precedents--she is neither an activist nor a rebel, but a keen mind with empathy. It was the right choice for Obama to make, and nay sayers like Sen. Chuck Grassley of Iowa and other would-be tyrants in the US Senate should get use to independent thinking, for Grassley and Session's outdated mindset have blocked democracy for too long in the USA from reaching its pure form.